Patna High Court
Amit Lodha vs The State Of Bihar Throuhg The ... on 22 January, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.17 of 2023
Arising Out of PS. Case No.-17 Year-2022 Thana- VIGILANCE District- Patna
======================================================
Amit Lodha S/O Dr. Narendra Lodha Resident of Grand Chandra Apartment,
Fraser Road, P.S.- Gandhi Maidan, Patna- 800001, Presently posted as
Inspector General, State Crime Records Bureau, Bihar, Patna, 800001
... ... Petitioner/s
Versus
1. The State Of Bihar Throuhg The Superintendent Of Police, Special
Vigilance Unit, Patna-800001 Bihar
2. The Superintendent Of Police, Special Vigilance Unit, Patna- 800001 Bihar
3. The Additional Chief Secretary, Dept. Of Home, Govt. Of Bihar, Patna-
800001 Bihar
4. The Director General Of Police, Bihar, Patna- 800001 Bihar
5. Mr. Sanjeev Kumar Singhal, The Ex- Director General Of Police, Govt. Of
Bihar, Patna. Bihar
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. P.N. Shahi, Sr. Advocate
Mr.Shekhar Singh, Advocate
Mr. Sumit Kumar, Advocate
For the SVU : Mr. Rana Vikram Singh, Advocate
For the State : Mr. Prabhu Narayan Sharma, AC to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 22-01-2024
Heard Mr. P.N. Shahi, learned senior counsel assisted by
Mr. Shekhar Singh, learned counsel for the petitioner, Mr. Rana
Vikram Singh, learned counsel for the Special Vigilance Unit
(SVU), Bihar and Mr. Prabhu Narayan Sharma, learned AC to
AG for the State.
2. The present writ application has been filed for the
following reliefs:-
"i. For quashing the F.I.R. of Special Vigilance
Unit, Patna Case No.17 of 2022 dated 07.12.2022
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
2/31
(Special Case No.80 of 2022 pending in the court
of learned Special Judge, Vigilance, Patna) under
sections 13(1)(b) read with 13(2) read with Section
12 of the Prevention of Corruption Act, 1988 and
Sections 120(B) and 168 of the Indian Penal Code
in the facts and circumstances of the case.
ii. For quashing and setting aside the investigation
being done by the respondent authorities in relation
to the aforesaid F.I.R. of Special Vigilance Unit,
Patna Case No.17 of 2022 dated 07.12.2022
(Special Case No.80 of 2022) which is illegal,
erroneous and malafidely instituted.
iii. For any other relief/reliefs for which the
petitioner is entitled."
Brief facts of the case
3. Petitioner in this case is an Officer of the Indian
Police Service 1998 batch, Bihar Cadre. He is presently posted
as Inspector General, State Crime Records Bureau, Bihar, Patna.
4. A First Information Report has been lodged giving
rise to SVU, Patna P.S. Case No.17 of 2022 for the offences
alleged under Sections 13(1)(B) r/w 13(2) r/w 12 of the
Prevention of Corruption Act, 1988 (as amended 2018) and
120(B) and 168 of the Indian Penal Code which has been
registered as Special Case No.80 of 2022 pending in the court of
learned Special Judge, Vigilance, Patna. Petitioner is facing
investigation in this case. The contents of the FIR are being
reproduced hereunder for a ready reference:-
"Information
Information has been received through various
verified and reliable source to the extent that Sri Amit
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
3/31
Lodha, an IPS officer of Bihar Cadre, the then
Inspector General of Police, Magadh Range, Gaya has
been earning illicitly, ever since his posting at Gaya in
connivance with Friday Story Teller LLP and others in
furtherance of criminal conspiracy and by indulging in
private trade illegally which does not commensurate
with his legal earnings.
It is alleged that the accused Sri Amit Lodha is
not an established Story writer neither he was
authorised nor permitted to write book and to use the
same for commercial purpose. Ignoring these facts, in
order to earn illicitly and to convert the black money
into white he used a book written by him named
"Bihar Diary" for production of a Web series named
"Khaki the Bihar Chapter." by resorting to illegal
activities.
It is alleged that Friday Story Teller Pvt. Ltd. has
been producing film on a book written by this Amit
Lodha and the reported cost of producing of his Web
serial/film is around 64 crores rupees and the
expenditure is being incurred by Los Gatos Production
Service India LLP which is the legal representative of
NETFLIX in India.
It is alleged that on 02.11.2018 there was an
acquisition agreement between Sri Amit Lodha and
Friday Story Teller Pvt. Ltd. and this acquisition
agreement was signed for Rs. 1 only, whereas from the
records available it was gathered that the accused
received Rs. 12,372/- on 18.08.2021 in his HDFC
bank A/c no-1651153000242 from Friday Story Teller.
It is further alleged that, with the same production
house an agreement was also signed between Smt.
Kaumudi Lodha in the name and style of Life Story
Rights acquisition agreement in order to facilitate the
transaction of illicitly, acquired wealth from one
account to the account Smt. Kaumaudi Lodha w/o Sri
Amit Lodha. It is further alleged that from this
production house Rs. 38.25 Lakhs was paid in the
account of the wife of the accused between the periods
07.03.2019
to 13.09.2021. It is also alleged that the
acquisition agreement was signed on 02.11.2018
between the accused Amit Lodha and Friday Story
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Teller Pvt. Ltd. but the latter had paid Rs. 4.5 Lakhs
and Rs. 6.75 Lakhs in the account of the wife of the
accused on 27.12.2017 and 26.03.2018 respectively,
much before the singing of the agreement. It is further
alleged that there was heavy and regular transaction of
money from the account of Friday Story Teller to the
account of Komudi Lodha his wife on different dates
related to the production of film, whereas as the matter
of fact, the ultimate beneficiary was Amit Lodha, his
wife and his associates including the Production
House. The facts and the circumstances, as regards the
time of agreement dated-02.11.2018 with Friday Story
Teller, agreement dt- 27.10.2020 and 15.02.2022
between Friday Story Teller and Los Gatos Production
Services India LLP the one sided flow of funds into
the accounts of Smt. Komudi Lodha before the
execution of said agreement are indicative of the
ulterior motive of Shri Amit Lodha for the purpose of
giving a legitimate cover to his ill gotten money.
It is further alleged that Sri Amit Lodha, being a
public servant illegally entered into private
trade/commercial activities with a production house
and others and illicitly earned around Rs. 49,62,372/-
till date by corrupt and illegal means which he cannot
justify as public servant. The above criminal act
amount to acquisition of property illegally by
indulging into Private Trade in conspiracy with his
wife and others including the Production House.
During investigation more assets acquired by the
accused may be unearthed.
Scrutiny of available govt. records available in
public domain further reveal that the accused has
acquired huge moveable/immovable properties which
is over and above appear to have been illicitly
acquired and prima facie could not be justified from
his legitimate legal sources of income and the accused
in unlikely to justify from his plausible legal sources
of income.
The facts mentioned above prime facies disclose
commission of offences u/s 13(1)(b) r/w 13(2) r/w 12
of PC Act 1988 (as amended 2018) and 120(B) & 168
of IPC on the part of Sri Amit Lodha the then
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Inspector General of Police and others and thus this
case in registered under the aforesaid sections of law
and entrusted to Sri Chandra Bhushan, Dy.SP for
investigation.
Sd/-
07.12.2022
(J.P. Mishra)
SP/SVU/Patna"
5. Learned senior counsel for the petitioner submits that
on a bare perusal of the FIR it would appear that the allegation
against the petitioner is that of indulging in 'private trade' in
connivance with the Friday Story Tellers LLP which is an
offence in terms of Section 168 IPC. He allegedly received
some income which does not commensurate with the legal
earnings of the petitioner, hence, Section 13(1)(b) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as
the 'P.C. Act') would be attracted. It is submitted that the entire
genesis of the prosecution rests upon the allegations against the
petitioner in respect of the Web Series namely 'Khakee: The
Bihar Chapter' which is based on the fictionalized story/script
written by a noted film writer Uma Shankar being inspired by
the book of the petitioner.
6. For purpose of quashing of the FIR, three grounds
have been raised before this Court which are as follows:-
(i) The allegations set out do not constitute commission
of any cognizable offence by the petitioner;
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
(ii) The FIR and the entire criminal proceedings arising
therefrom, including its investigation, is vitiated with malafide
and will result in malicious prosecution, if allowed to continue
and;
(iii) The impugned FIR has been registered without
obtaining mandatory sanction under Section 17A of the P.C. Act.
7. Learned senior counsel submits that Explanation 1 of
Section 13(1)(b) of the P.C. Act as amended vide Amendment
Act, 2018 would not be attracted in the case of the petitioner.
According to his provision, a person shall be presumed to have
intentionally enriched himself illicitly if he or any person on his
behalf, is in possession of or has, at any time during the period
of his office, been in possession of pecuniary resources or
property disproportionate to his known sources of income which
the public servant cannot satisfactorily account for. It is
submitted that from the facts stated in the FIR itself in the
present case, it would be evident that the petitioner was never in
possession of such resources which are disproportionate to his
known sources of income.
8. Learned senior counsel for the petitioner submits that
the allegations against the petitioner are false and baseless. So
far as his wife is concerned, she has received the money for
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
execution of legal contracts with 'Friday Story Tellers' for her
services in her own independent rights. It has been falsely stated
in the impugned FIR that the petitioner ever since posted as I.G.,
Gaya had allegedly conspired with Friday Story Tellers LLP and
others. It is pointed out that the petitioner was appointed as I.G.,
Gaya in the year 2021, while all the agreements entered between
the parties were prior thereto when the petitioner was on Central
deputation. It is, thus, submitted that the SVU did not have any
jurisdiction to lodge the FIR in question.
9. Learned senior counsel for the petitioner submits that
the facts and circumstances under which total sum of
Rs.49,50,000/- was received by the wife of the petitioner from
Friday Story Tellers have been fully explained by the
prosecution in paragraph '5' of the FIR itself wherein it is stated
that she had received the amount through banking channels
pursuant to agreements with the said Company. It is submitted
that the income of the wife of the petitioner has also been duly
reflected in her Income Tax Return (ITR) and she has declared
her bank details in the annual assets declaration of the petitioner
to the Bihar Government. It is contented that the income
received by the petitioner's wife is absolutely lawful,
satisfactorily accounted-for and squarely covered under
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Explanation 2 to Section 13(1)(b) of the P.C. Act.
10. Relying upon the judgment of the Hon'ble Supreme
Court in the case of DSP Chennai Vs. K. Inbasagaran (2006)
1 SCC 420, learned senior counsel submits that in the said case
it has been held by the Hon'ble Supreme Court that the income
of the wife of public servant and the assets which are owned by
the wife of the public servant, such income and assets cannot be
attributed to the public servant and he cannot be held liable for
having assets disproportionate to his income. The same view has
been reiterated by the Hon'ble Apex Court in the case of
Akhilesh Yadav Vs. Vishwanath Chaturvedi & Ors. in
Review Petition (Civil) No.272 of 2007. It is submitted that the
petitioner signed the assignment agreement in favour of the
Friday Movies & T.V. Private Limited on 02.11.2018 for
granting the adaptation rights of his book for a token sum of
Rs.1/- only as consideration is mandatory to make the said
contract legally valid and enforceable. Since the petitioner has
not taken any consideration, the provisions of Section 168 IPC
are not attracted. Further, the basic ingredients for the offence
under Section 168 IPC is that any person who is public servant
should have engaged in trade while holding such office. Learned
senior counsel relies upon the judgment of the Hon'ble Supreme
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Court in the case of State of Gujarat VS. Maheshkumar
Dhirajlal Thakkar AIR 1980 SC 1167.
11. It is submitted that the action of the petitioner in
entering into assignment agreement would not attract any
criminality. Reference has been made to the judgment of the
Hon'ble Supreme Court in the case of Kanwarjit Singh
Kakkar VS. State of Punjab (2011) 13 SCC 158 to submit that
where no criminality is involved in the subject actions, even acts
which violate government directions or conduct rules do not
constitute an offence either under Section 168 IPC or under P.C.
Act.
12. Learned senior counsel submits that the SVU has
filed a counter affidavit in this case in which the investigating
agency has merely restated the details of the assets already
declared by the petitioner. It is submitted that the passport
entries would show that the allegation that the petitioner had
gone to France in the year 2018 is not correct and further
allegations in the counter affidavit that the petitioner has
constructed any house in Jaipur is also bereft of any material
and is patently false.
13. It is further stated that the figures cited in the
counter affidavit as regards the income tax statement of the
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
accused and mutual fund investment figures are grossly
exaggerated inasmuch as the market values of the assets have
been taken instead of the cost of acquisition and thereby raising
serious doubts over the intent as well as competence of the
investigating agency.
14. It is submitted that the SVU does not have any
quantum of disproportionate assets even after more than a year
of the registration of the FIR.
15. Relying upon the judgment of the Hon'ble Supreme
Court in the case of Surendra Singh Rathod & Anr. Vs. State
of Rajasthan S.B. Crl. Misc. (Petition) No.9187 of 2022, it is
submitted that the Hon'ble Court has been pleased to hold that it
would be abuse of the process of law for an FIR registered in a
causal and negligent manner to continue and on this ground the
FIR was quashed.
16. It is submitted that in the case of Satish Mehra Vs.
State of NCT of Delhi & Anr. AIR 2013 SC 506 it has been
held that a criminal trial cannot be allowed to assume the
character of fishing and roving enquiry. It would not be
permissible in law to permit a prosecution to linger, limp and
continue on the basis of a mere hope and expectation that in the
trial some material may be found to implicate the accused.
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
17. It is pleaded that the impugned FIR has been
registered in non-compliance of the statutory provisions which
constitute an express legal bar and in terms of State of Haryana
VS. Bhajan Lal & Ors. 1992 Supp (1) SCC 335 the same
deserves to be quashed. It is submitted that there is an element
of malice in the impugned FIR and the criminal action initiated
against the petitioner is evident from the fact that on the one
hand Section 168 IPC has been invoked on the ground that the
petitioner being a public servant has engaged in trade while
holding such office and on the other hand it has been stated that
the provisions of the Section 17A of the P.C. Act are not
required to be followed since the alleged acts done by the
petitioner do not fall within the ambit of act done in discharge of
official duty.
18. Learned senior counsel for the petitioner submits
that debates in the Rajya Sabha and Lok Sabha held on
19.07.2018 and 24.07.2018, the intention of the legislatures
behind incorporation of Section 17A of the P.C. Act may be
found. It is submitted that the impugned FIR has been registered
in non-compliance of Circular No.428/07/2021-AVD.IV(B)
dated 03.09.2021 issued by the Government of India, Ministry
of Personnel, Public Grievances and Pension regarding
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
'Standard Operating Procedures (SOPs)' for processing of cases
under Section 17A of the P.C. Act. The Hon'ble Supreme Court
of India in Yashwant Sinha and Ors. Vs. Central Bureau of
Investigation and Ors. (Review Petition (Crl.) No.46 of 2019
has held that in the absence of previous approval under Section
17A of the P.C. Act, there cannot be enquiry, inquiry or
investigation in such cases. Further the Hon'ble Division Bench
of Bombay High Court also in the case of Anil Vasantrao
Deshmukh Vs. State of Maharashtra, 2021 SCC Online Bom
1192 has held that dishonest performance falls under the
provisions of offences punishable under IPC and P.C. Act,
however, there has to be a reasonable nexus between the act
complained and the discharge of official duty and as such the
prior sanction under Section 17A of the P.C. Act is mandatory in
such cases. It is submitted that in the present case the
prosecution has shown no nexus between official duty of the
accused and the production of the web series who has not been
arraigned as an accused in the impugned FIR and the
prosecution of their own admission has no evidence against the
producers till date.
19. Learned senior counsel has further relied upon a
judgment in the case of State of Punjab VS. Davinder Pal
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Singh Bhullar and others (2011) 14 SCC 770 and a judgment
of the Hon'ble Karnataka High Court in the case of Dr. Ashok
V. Vs. the State by Hon'ble Lokayuktha of Karnataka &
Anr. Criminal Petition No.531/2022 to submit that in absence
of mandatory approval for grant of registration of a crime, the
very registration of the crime tumbles down and whole
paraphernalia of impugned FIR, subsequent investigations etc.
remains illegal, void and non-est in law.
20. Learned senior counsel for the petitioner has raised an
issue of requirement of holding a preliminary inquiry in the facts
of this case. It is submitted that the impugned FIR has been
registered without holding a preliminary inquiry and it has been
done on the same date within three hours of receiving the source
information. It is submitted that in terms of the judgment of the
Hon'ble Constitution Bench of the Supreme Court in the case of
Lalita Kumari Vs. Govt. of U.P. & Ors. (2014) 2 SCC 1 and
another judgment in the case of P. Sirajuddin Etc. Vs. the State
of Madras 1971 CRI.LJ 523, holding of preliminary inquiry was
essential and ought to have been done without any exception.
21. Learned counsel for the respondent nos. 1 and 2 has
opposed the writ application. It is submitted that the FIR against
the petitioner discloses cognizable offences which are serious in
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
nature and the investigation of this case is at a very crucial
stage, therefore, this Court need not exercise its extraordinary
writ jurisdiction to quash the FIR and scuttle the investigation at
its inception.
22. Learned counsel submits that the petitioner is a
public servant, he had a permission from the level of DG, BSF
for publication of his book through Penguin house only but
before entering into an agreement with a company for
production of a film/web series on his written book the
petitioner did not take any permission from the competent
authority which would attract Section 168 IPC. It is further
submitted that the wife of the petitioner has signed 'Right
Assignment Agreement' for consideration amount of Rs. 25 lacs
after being agreed by the petitioner to grant rights for production
of film on his story. The wife of the petitioner was not engaged
anywhere else before signing the agreement with Producer-2.
Only after written agreement, she has signed another agreement
with the same company as story consultant and the company has
paid another Rs.27 lacs to her. Payment of such huge amount to
a new comer is under suspicion and it indicates that the amount
has been paid for Amit Lodha by adopting another way in the
name of his wife. The investigation on this point is still pending
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
and subject to verification.
23. Learned counsel submits that the FIR has been
registered on the basis of information and the allegations which
have been corroborated with the materials available with the
SVU.
24. As regards issue of preliminary inquiry, learned
counsel submits that a preliminary inquiry is only conducted or
required when information received is not sufficient to register a
regular case, however, when the information received is
adequate to register a regular case no preliminary inquiry is
necessary. It will depend upon the facts of the case and no hard
and fast rule may be laid down for this purpose. In the case of
State of Telangana VS. Managipet (2019) 19 SCC 87 and CBI
and Anr. Vs. Thommandru Hannah Vijayalakshmi @ T.H.
Vijayalakshmi and Anr. AIR 2021 SC 5041, it has been held
that a preliminary inquiry cannot be made mandatory for all
cases of alleged corruption. In the case of Managipet (supra),
the Hon'ble Supreme Court has noted that the decision in Lalita
Kumari (supra) held that preliminary enquiry was desirable in
cases of alleged corruption but that would not vest a right in the
accused to demand a preliminary inquiry. Reliance has been
placed on paragraphs 28, 29, 30, 32, 33 and 34 of the judgment
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
of the Hon'ble Apex Court in Managipet (supra).
25. Learned counsel submits that in the present case the
petitioner is facing an allegation of being in possession of
disproportionate assets and there are ample materials which
would require an investigation, thus, the petitioner cannot claim
as a matter of right that preliminary enquiry must be done
because he does not have this right in terms of the judgments of
the Hon'ble Supreme Court.
26. As regards applicability of Section 17A of the P.C.
Act, learned counsel for the respondent nos.1 and 2/SVU would
submit that the protection of Section 17A is available to a public
servant and it operates against a police officer in conducting any
enquiry or investigation into any alleged offence which have
been committed by a public servant under the P.C. Act without
previous approval of the prescribed authority. It is submitted
that the bar would apply only when the offence allegedly
committed by a public servant under the Act relates to any
recommendation made or decision taken by such public servant
in discharge of his official functions or duties. It is submitted
that Section 17A of the P.C. Act does not apply to cases
involving arrest of persons from the spot on the charge of
accepting or attempting to accept any undue advantage for
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
himself or any other person. The issue raised by the petitioner
as to applicability of Section 17A of the P.C. Act is to be
considered in the given facts and circumstances of the case. The
investigation has revealed so far that the petitioner and his
family members are holding twelve bank accounts in different
banks with huge balances as on 07.12.2022. The details have
been provided in the counter affidavit.
27. Learned counsel submits that the petitioner has
disclosed his income showing that he and his wife are engaged
in business and speculative business and are earning from these
heads. The petitioner is a public servant and how a public
servant is declaring income from business and speculative
business apart from salary is a matter of investigation. It is in
teeth of Rule 13(1)(a) and 14 of the All India Services
(Conduct) Rules 1968 and Section 168 IPC. It is submitted that
a close and meticulous scrutiny of Section 17A of the P.C. Act
reveals that it is not that every offence alleged to have been
committed by the public servant under the Act would need prior
approval. In fact prior approval under Section 17A would be
required only when the alleged offences are relatable to any
recommendation made or decision taken by public servant
seems to be the heart and soul of the above Section.
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
28. It is submitted that in the case of Hori Ram Singh
VS. Emperor, AIR 1939 PC 43, H.B. Gill and Anr. Vs. King,
AIR 1948 PC 129 and Matajog Dubey Vs. H.C. Bhari, AIR
1956 SC 44 the Courts have held that the crucial test to
determine whether a public servant acts or purports to act in
official capacity by holding that, if challenged, he can
reasonably claim that, what he did was by virtue of his office,
rather it is the quality of the act that was important and if it falls
within the ambit of its official acts/duties, the protection
contemplated under Section 197(1) of Cr.P.C. will be attracted.
The same analogy would apply to Section 17A of the P.C. Act.
In S.B. Saha and Anr. Vs. M.S. Kohchar, AIR 1979 SC 1841,
it has been held that for prosecuting public servant for dishonest
misappropriation or conversion of goods which they have
seized, sanction was not essential.
29. It is submitted that the protection envisaged under
Section 17A of the P.C. Act is not a blanket protection and
when the act of any official/person is ex-facie criminal or
constitute an offence and further any act which involves
amassing wealth disproportionate to his known sources of
income, breach of trust and misappropriation of funds being ex-
facie criminal, prior approval of the government/competent
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
authority would not be required/necessary. Reliance has been
placed on the judgment in the case of T.O. Suraj Vs. State of
Kerala, 2021 SCC Online Ker 2896, Satish Pandey and Ors.
Vs. UOI and Ors., Manu/CG/0097/2020, Shankar Bhat Vs.
State of Kerala and Ors. CRL. M.C. No.7542/2018 dated
27.08.2021 and Rajendra Prasad Vs. The State of Bihar
2022(4) BLJ 189.
30. Learned counsel further submits that a provision like
Section 17A of the P.C. Act in an anti-corruption law has to be
interpreted in such a fashion to strengthen fight against the
corruption, where two constructions are eminently reasonable,
the court has to accept the one that seeks to eradicate corruption
than the one which seeks to perpetuate it as held by the Hon'ble
Supreme Court in the case of Dr. Subramanian Swamy Vs. Dr.
Manmohan Singh (2012) 3 SCC 64. In the case of
Subramanian Swamy VS. Director, CBI AIR 2014 SC 2140,
the Hon'ble Supreme Court held that the criminal justice system
mandates that any investigation into the crime should be fair, in
accordance with law, should not be tainted. It is equally
important that interested or influential persons are not able to
misdirect or hijack the investigation so as to throttle a fair
investigation resulting in offender escaping the punitive course
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
of law which are important facets of rule of law.
31. Learned counsel relies upon the judgment of the
Hon'ble Supreme Court in the case of Superintendent of
Police, CBI & Ors. Vs. Tapan Kumar Singh AIR 2003 SC
4140 and in the case of Neeharika Infrastructure Pvt. Ltd.
Vs. State of Maharashtra and Anr. AIR 2021 SC 1918 to
submit that it is only in cases where no cognizable offence is
disclosed in the FIR that the Court will not permit an
investigation to go on. It is submitted that the court cannot
embark upon an enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR/complaint and a
criminal proceeding ought not to be scuttled at the initial stage.
It is further submitted that in a matter relating to an FIR with
respect to disproportionate assets case against a public servant,
recently the Hon'ble Supreme Court in the case of State of
Chhattisgarh and Anr. Vs. Aman Kumar Singh and Ors.
along with Uchit Sharma Vs. State of Chhattisgarh and Ors.
reported in (2023) 6 SCC 559 has held that High Courts should
maintain a hands-off approach and not quash a first information
report pertaining to "corruption" cases, specially at the stage of
investigation. Paragraph '80' thereof has been relied upon. It is
submitted that like the case of CBI & Anr. Vs. Thommandru
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr.
(supra) the present case is also based on sourced information
which have been duly and credibly verified. The Hon'ble
Supreme Court has well explained the category of cases in the
case of State of Karnataka VS. J. Jayalalitha (2017) 6 SCC
263.
32. Learned counsel submits that the plea taken by the
petitioner with regard to jurisdiction and limitation etc. are not
worth acceptable. It is submitted that the entire service period of
the petitioner from 1998 to 07.12.2022 have been taken as the
check period to arrive at a logical conclusion in respect of
disproportionate assets. During check period, the petitioner was
posted at several places in the jurisdiction of SVU. He has
accumulated assets either on his own name or in the name of his
family members. During the period, he was posted as I.G.,
Magadh Range, Gaya, in pursuance of his agreement he had
visited Mumbai in August, 2021 to meet the production team of
web series and had received Rs. 12,372/- on 18.08.2021 from
Friday Story Teller LLP in his HDFC bank account. During his
posting as I.G., Magadh Range, Gaya again he had visited the
shooting site at Kurka village near Ddaltanganj, Jharkhand on
16th September, 2021 to monitor the production/creation of web
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
series. The petitioner stayed with the production team there in
the same hotel on 17.09.2021 and payment of Rs.75,900/- has
been paid by the company. It is submitted that accumulation of
disproportionate assets is a continuous offence and the above
facts are enough to prove the jurisdiction of SVU, Bihar, Patna
to register the FIR against the petitioner and others.
33. It is lastly submitted that in the facts of the present
case, the investigation must be allowed to reach its logical
conclusion. The claims of the petitioner and his contentions in
support thereof are devoid of merit and as such this application
is fit to be dismissed.
Consideration
34. Having heard learned senior counsel for the
petitioner and learned counsel for the SVU and upon perusal of
the records, this Court finds that the information which are part
of the FIR in this case would demonstrate that the allegation
against the petitioner is that of illicitly acquiring wealth as a
public servant. It is alleged that there were regular transactions'
of money from the account of Friday Story Tellers to the
account of Komudi Lodha, the wife of the petitioner on different
dates related to the production of a film and the ultimate
beneficiary of the same was this petitioner, his wife and his
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
associates. The allegations are being investigated. The
allegations, without adding or substracting anything out of it, if
taken on as it is, it cannot be said that no cognizable offence
would be made out.
35. There is another allegation that the petitioner being a
public servant had illegally entered into a private trade with a
production house and earned around Rs. 49,62,372/-by corrupt
and illegal means. At this stage, this Court is of the considered
opinion that the contention of the SVU that the scrutiny of
available government records available in public domain reveal
that the accused has acquired huge movable/immovable
properties which is over and above and have been illicitly
acquired, cannot be examined by this Court by holding a pre-
matured trial.
36. While arguing the writ application, learned senior
counsel for the petitioner has attempted to furnish a lot of
explanations and justifications behind the alleged transactions
with Friday Story Teller LLP, however, this Court is of the
opinion that such explanations and justifications are not to be
considered by this Court at this stage. The case is still at
investigation stage and the SVU in its report submitted before
this Court has stated that in order to arrive at a logical
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
conclusion in this case at least six more months is needed.
Learned counsel for the SVU has also taken the same plea in
course of hearing of this case.
37. The submission of learned senior counsel for the
petitioner that lodging of the FIR in the present case without
going for a preliminary inquiry is a malafide action would not
impress upon this Court as it is well settled that if the source
informations are credible and those indicate towards
commission of a cognizable offence, the accused cannot be
allowed to take a plea that no FIR could have been registered
without holding a preliminary inquiry. Learned counsel for the
SVU has rightly relied upon the judgment of the Hon'ble
Supreme Court in the case of Managipet (supra) and T.H.
Vijayalakshmi (supra). No malafide could be read only because
a First Information Report has been lodged in this matter.
Paragraph '33' and '34' of Managipet (supra) are being
reproduced hereunder for a ready reference:-
"33. In the present case, the FIR itself shows
that the information collected is in respect of
disproportionate assets of the accused officer. The
purpose of a preliminary inquiry is to screen wholly
frivolous and motivated complaints, in furtherance of
acting fairly and objectively. Herein, relevant
information was available with the informant in
respect of prima facie allegations disclosing a
cognizable offence. Therefore, once the officer
recording the FIR is satisfied with such disclosure,
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
he can proceed against the accused even without
conducting any inquiry or by any other manner on
the basis of the credible information received by
him. It cannot be said that the FIR is liable to be
quashed for the reason that the preliminary inquiry
was not conducted. The same can only be done if
upon a reading of the entirety of an FIR, no offence
is disclosed. Reference in this regard, is made to a
judgment of this Court in State of Haryana v. Bhajan
Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1)
SCC 335 : 1992 SCC (Cri) 426] wherein, this Court
held inter alia that where the allegations made in the
FIR or the complaint, even if they are taken at their
face value and accepted in their entirety, do not
prima facie constitute any offence or make out a case
against the accused and also where a criminal
proceeding is manifestly attended with mala fides
and/or where the proceeding is maliciously instituted
with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to
private and personal grudge.
34. Therefore, we hold that the preliminary
inquiry warranted in Lalita Kumari [Lalita Kumari v.
State of U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri)
524] is not required to be mandatorily conducted in
all corruption cases. It has been reiterated by this
Court in multiple instances that the type of
preliminary inquiry to be conducted will depend on
the facts and circumstances of each case. There are
no fixed parameters on which such inquiry can be
said to be conducted. Therefore, any formal and
informal collection of information disclosing a
cognizable offence to the satisfaction of the person
recording the FIR is sufficient."
38. As regards applicability of Section 17A of the P.C.
Act, this Court is of the considered opinion that where credible
informations are received against a public servant of having
accumulated assets disproportionate to his known source of
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
income, unless the facts of the case rests on a very special
feature, no interference would be required in the garb of
applicability of Section 17A of the P.C. Act. The judgment in the
case of P. Sirajuddin (supra) is clearly distinguishable on facts
of the said case.
39. The observations of the Hon'ble Supreme Court in
the case of Devendra Kumar Singh & Ors. Vs. CBI and Ors
2019 (1) Crimes 726 saying that when the act of a public
servant is ex-facie criminal or constitutes an offence, a
cognizable one, prior approval of government/competent person
would not, at all, be necessary shall be the guiding factor. In the
case of Aman Kumar Singh (supra), the Hon'ble Supreme
Court has observed in paragraph '79' and '80' as under:-
" 79. Finally, following the above, what is
of substantial importance is that if criminal
prosecution is based upon adequate evidence and the
same is otherwise justifiable, it does not become
vitiated on account of significant political overtones
and mala fide motives. We can say without fear of
contradiction, it is not in all cases in our country that
an individual, who is accused of acts of
omission/commission punishable under the PC Act
but has the blessings of the ruling dispensation, is
booked by the police and made to face prosecution.
If, indeed, in such a case (where a prosecution
should have been but has not been launched) the
succeeding political dispensation initiates steps for
launching prosecution against such an accused but
he/she is allowed to go scot-free, despite there being
materials against him/her, merely on the ground that
the action initiated by the current regime is mala fide
in the sense that it is either to settle scores with the
earlier regime or to wreak vengeance against the
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
individual, in such an eventuality we are constrained
to observe that it is criminal justice that would be the
casualty. This is because, it is difficult to form an
opinion conclusively at the stage of reading a first
information report that the public servant is either in
or not in possession of property disproportionate to
the known sources of his/her income. It would all
depend on what is ultimately unearthed after the
investigation is complete. Needless to observe, the
first information report in a disproportionate assets
case must, as of necessity, prima facie, contain
ingredients for the perception that there is fair
enough reason to suspect commission of a
cognizable offence relating to "criminal misconduct"
punishable under the PC Act and to embark upon an
investigation.
80. Having regard to what we have
observed above in paras 47 to 50 (supra) and to
maintain probity in the system of governance as well
as to ensure that societal pollutants are weeded out at
the earliest, it would be eminently desirable if the
High Courts maintain a hands-off approach and not
quash a first information report pertaining to
"corruption" cases, specially at the stage of
investigation, even though certain elements of
strong-arm tactics of the ruling dispensation might
be discernible. The considerations that could apply
to quashing of first information reports pertaining to
offences punishable under general penal statutes ex
proprio vigore may not be applicable to a PC Act
offence. Majorly, the proper course for the High
Courts to follow, in cases under the PC Act, would
be to permit the investigation to be taken to its
logical conclusion and leave the aggrieved party to
pursue the remedy made available by law at an
appropriate stage. If at all interference in any case is
considered necessary, the same should rest on the
very special features of the case."
40. In the present case, as per the allegations and the
evidences which have been collected so far, it is contended that
the petitioner has accumulated assets valued more than 7 crores
even as his total income from all legal sources would not be
more than 2 crores in gross without any deductions. The
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
investigation of the case is still pending and the SVU has come
out with a statement in its report that the investigation will take
at least six more months.
41. In the facts and circumstances of the case, this Court
finds no merit in this writ application. No interference is
required by this Court to scuttle the investigation of the case.
42. Having said so, this Court cannot remain oblivious
of the fact that in this case the First Information Report has been
lodged on 07.12.2022 and more than one year has gone in the
on-going investigation. In the case of Hussainara Khatoon &
Ors. Vs. Home Secretary, State of Bihar reported in AIR
1979 SC 1360, the Hon'ble Supreme Court has held that speedy
trial is a part of fundamental right to life and liberty. It is an
integral and essential part of Article 21 of the Constitution of
India. A proper and fair investigation has been held to be an
essential component of the concept of speedy trial and it has its
roots embedded in a reasonably fair and just procedure.
43. In A.R. Antulay & Others Vs. R.S. Nayak & Anr.
reported in (1992) 1 SCC 225, the Hon'ble Supreme Court held
that Right to speedy trial flowing from Article 21of the
Constitution of India encompasses all the stages, namely the
stage of investigation, inquiry, trial, appeal, revision and re-trial.
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
44. In the case of Amar Nath Chaubey Vs. Union of
India & Others reported in (2021) 11 SCC 804, the Hon'ble
Supreme Court while dealing with duty of police and aim of the
investigation held that a fair investigation is a necessary
concomitant of Articles 14 and 21 of the Constitution of India
and being a constitutional Court, this Court has the bounden
obligation to ensure adherence by the police. Paragraph '11' of
the judgment in Amar Nath Chaubey reads as under:-
"11. The police has a statutory duty to
investigate into any crime in accordance with law as
provided in the Code of Criminal Procedure.
Investigation is the exclusive privilege and
prerogative of the police which cannot be interfered
with. But if the police does not perform its statutory
duty in accordance with law or is remiss in the
performance of its duty, the court cannot abdicate its
duties on the precocious plea that investigation is the
exclusive prerogative of the police. Once the
conscience of the court is satisfied, from the materials
on record, that the police has not investigated properly
or apparently is remiss in the investigation, the court
has a bounden constitutional obligation to ensure that
the investigation is conducted in accordance with law.
If the court gives any directions for that purpose
within the contours of the law, it cannot amount to
interference with investigation. A fair investigation is,
but a necessary concomitant of Articles 14 and 21 of
the Constitution of India and this Court has the
bounden obligation to ensure adherence by the
police."
45. In Mohammed Zubair Vs. State of NCT of Delhi
& Others reported in AIR 2022 SC 3649, the Hon'ble Supreme
Court has inter-alia reiterated paragraph '60' of the judgment
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
rendered in the case of Arnab Ranjan Goswami Vs. Union of
India reported in (2020) 14 SCC 12 which reads as under:-
"60.[...] Courts must be alive to the need to
safeguard the public interest in ensuring that the due
enforcement of criminal law is not obstructed. The fair
investigation of crime is an aid to it. Equally it is the
duty of courts across the spectrum - the district
judiciary, the High Courts and the Supreme Court - to
ensure that the criminal law does not become a weapon
for the selective harassment of citizens. Courts should be
alive to both ends of the spectrum - the need to ensure
the proper enforcement of criminal law on the one hand
and the need, on the other, of ensuring that the law does
not become a ruse for targeted harassment. Liberty
across human eras is as tenuous as tenuous can be.
Liberty survives by the vigilance of her citizens, on the
cacophony of the media and in the dusty corridors of
courts alive to the rule of (and not by) law. Yet, much too
often, liberty is a casualty when one of these components
is found wanting."
46. This Court would, thus, direct the investigating
agency to take the investigation of this case to its logical end
within a period of six months from today. The investigating
agency i.e. SVU shall ensure that the investigation be conducted
in proper and fair manner in accordance with law. The
investigation must be fair and in no case the pending
investigation be allowed to be used as ruse for targeted
harassment. The petitioner shall be obliged to cooperate with the
investigating agency as and when required.
47. While parting with this brief, this Court makes it
clear that no part of the observations of this Court hereinabove
Patna High Court CR. WJC No.17 of 2023 dt.22-01-2024
would cause prejudice to the petitioner in the on-going
investigation and it will be open to him to take all such pleas
which may be available to the petitioner at an appropriate stage
in accordance with law.
48. This writ application stands disposed of accordingly.
(Rajeev Ranjan Prasad, J)
arvind/-
AFR/NAFR AFR
CAV DATE 03.01.2024
Uploading Date 22.01.2024
Transmission Date 22.01.2024
